A recent practice direction issued by the Chief Justice of
Ireland and recent judgments of Mr Justice Hogan indicate a shift
by the Irish Courts towards a more general right of public access
to court documents.
The prevailing situation in Ireland in relation to access to court
documents is unusual among common law countries, in that there is a
de facto prohibition on access to filed pleadings. This is in
contrast to the general right of access that exists in other
jurisdictions such as the United States and Australia where certain
court documents can be accessed online.
The long-standing practice of restricting public access to court
documents in Ireland is underpinned by section 65 of the Court
Officers Act 1926 which maintains that access to court documents is
not a general right and is instead at the presiding judge's
discretion.
However, two decisions in March and October 2013 of Mr Justice
Gerard Hogan laid down new principles for public access to court
documents. In AIB v Tracey (No.2), Justice Hogan allowed access to
an affidavit that had been opened in court to a non-party. Justice
Hogan later affirmed his position in Kelly v Byrne and based this
on the entitlement of the public to have access to court documents
in accordance with the Constitutional principle that justice be
administered in public. He noted, however, that such entitlement
would not apply to all court documents, only those that had been
opened in court and in respect of which there were no reporting or
other restrictions.
In another significant development, a Supreme Court practice
direction (SC15) was issued in October 2013 stating that written
submissions to the Supreme Court would now be made available to the
public, albeit with the caveat that certain submissions would need
to be redacted where necessary.
A consequence of this development is that any confidential and
commercially sensitive information set-out in pleadings might be
available to the public if the relevant pleading is opened to the
court without restriction. If this would be an issue for potential
litigants, they should consider asking the court, by way of
submission or otherwise, to confirm that such information be
restricted from public access.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.